"It Matters Not How You Get It"

Who is to blame for this week's acquittal of terrorist Ahmed Ghailani on the most serious charges brought against him by federal prosecutors?

A) No one. The system of American justice worked perfectly. The jury found the defendant guilty on one serious charge (blowing up the U.S. Embassies in Kenya and Tanzania in 1998), carrying a 20-years-to-life sentence. There was insufficient evidence of guilt on the other charges (killing the people inside).

B) The jurors. What were they thinking?

C) Trial judge Lewis Kaplan, who prevented a key government witness from testifying because the government found this witness as a result of coerced interrogation of Ghailani.

D) The Framers, who created a constitutional system entitling criminal defendants to go free based on technicalities that have nothing to do with guilt or innocence.

E) Attorney General Eric Holder, who should have prosecuted Ghailani before a military tribunal.

F) The U.S. Supreme Court, which played no direct role in the litigation but laid the groundwork for this week's result.

I choose F). Here's why.

The jurors aren't to blame. Perhaps there indeed was insufficient evidence at trial to convict on most of the charges, given that Judge Kaplan refused to allow the testimony of Hussein Abebe, whom prosecutors described as "a giant witness for the government." Abebe sold explosives to Ghailani and stood ready to tell all, but was barred from testifying because the judge ruled that the government found him by torturing Ghailani.

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The jurors' willingness to resist conviction absent strong proof at trial offers an amazing civics lesson to the world. The decision harks back to 1770, when a Boston jury convicted a couple of British soldiers for their participation in the Boston Massacre but acquitted Captain Thomas Preston and six other defendants in the bloody affair, thereby showing that American justice could treat defendants fairly even when public passions run high.

Judge Kaplan, by contrast, is part of the problem. He wrapped himself in the flag and the Founders, invoking "principles upon which our nation rests," which he traced to the Fifth Amendment's rule against compelled self-incrimination. Kaplan goofed: At the founding, the law did not bar the government from introducing reliable evidence found by tricking or coercing the suspect—or even by treating him roughly. Embarrassingly, Kaplan cited an old book on self-incrimination that has been widely discredited by contemporary scholars. Still, the real fault here lies with the Supreme Court. Beginning in the late 1800s and metastasizing in the 1960s, Supreme Court case law has mangled the Fourth Amendment's protection against unreasonable searches and seizures and the Fifth Amendment's protection against self-incrimination. Simply put, nothing in either amendment, rightly read, requires the exclusion of reliable evidence, which is what Abebe's testimony would have been however it was obtained.

How did we get here? For more than a century after the Declaration of Independence, no court in America excluded evidence in a case like Ghailani's. Indeed, the very point of a public trial was to enable the members of the public to bring forth their evidence and have it heard by the jury and the gallery: "That's the man! And here's my proof." In 1783, an English court famously confronted a situation in which a suspect had in effect been coerced into leading the government to find a cache of stolen goods. The idea that evidence about the cache should be suppressed at trial was dismissed by the court as "novel in theory," "dangerous in practice," and "repugnant to the general principles of criminal law." A later court tartly summarized the traditional Anglo-American rule about procuring evidence: "It matters not how you get it; if you steal it, even, it would be admissible in evidence." In 1822, early America's most learned jurist, Supreme Court Justice Joseph Story, wrote emphatically: "In the ordinary administration of municipal law the right of using evidence does not depend … upon the lawfulness or unlawfulness of the mode, by which it is obtained. … The evidence is admissible on charges for the highest crimes, even though it may have been obtained by a trespass upon the person, or by any other forcible and illegal means."

The Founders' Fifth Amendment did operate as a rule of exclusion: It excluded the government from introducing the defendant's own involuntary testimony. But it did so precisely because such testimony was viewed as unreliable. For example, even an innocent defendant, if forced to take the stand, might sweat, stutter, or get confused, and might thus be made to look guilty. But in Ghailani's case, no one tried to put him on the stand. Rather, the government wanted someone else to testify—and the Fifth Amendment simply has nothing to say about this question. (More here on the basic purpose and limits of the Fifth Amendment.)

Well into the 19th century, this sensible view of the Fifth Amendment's letter and spirit dominated. Following a long line of earlier precedents, Congress during the Civil War passed a statute allowing the government to force criminal suspects to tell all pretrial and then to use the information to track down physical evidence or eyewitnesses. In debates over the bill, one senator minced no words: The suspect's interrogation might "lead to other testimony that may throw light on the subject, whereby in the concatenation of events he may be convicted of crime. Well, sir, I hope it will be so." With this understanding of the bill's basic purpose and effect, President Lincoln added his signature to the law in 1862.

In 1892, the Supreme Court cast aside this statute, and in a series of later rulings eventually turned the Fourth and Fifth Amendments upside-down. In effect, the court said that whenever an unreasonable Fourth Amendment search or seizure had taken place, or whenever a suspect had been required to provide information or leads to investigators, all the reliable evidence generated by these actions—the "fruits" of the search, seizure, or interrogation—must be excluded from the criminal courtroom even if (indeed, especially if) these fruits are extremely reliable evidence of the criminal's guilt. This is the so-called "exclusionary rule," and it is a pure judicial creation, providing windfalls for the guilty and no real comfort for innocent victims of government misconduct.

These modern rulings are the real problem. And they would probably have tripped up the prosecution in the same way if Ghailani had been tried in a military proceeding, as my friend Morris Davis, former chief prosecutor for the military commissions at Guantanamo, explains in a New York Times op-ed.

How to fix this? If the current justices want to begin to set things right, in a way that minimizes discontinuity, there are several obvious ways to start. To begin with, the high court could categorically hold that even if physical evidence must sometimes be suppressed, live witnesses, who, after all, speak based on their own free will, should never be muzzled. The court in 1978 hinted this but failed to lay down a clear rule, leading to confusion, like Judge Kaplan's in this case.

In addition, the Court could expand an important limitation on the exclusionary rule known as "inevitable discovery." This standard allows the government to use evidence that would have eventually surfaced regardless of any coerced confession or improper search. Courts thus should strongly—perhaps irrefutably—presume that a witness's conscience would have impelled him to come forward on his own.

Finally, the court could make clear that in situations of ongoing criminality—whether a kidnapping-in-progress, a domestic conspiracy among mobsters, or international terrorism—government may properly oblige suspects to tell everything they know. Because there is an urgent need to find the kidnapping victim or the ticking bomb or the details of some future bomb plot, the rules that regulate ordinary completed crimes do not mechanically apply. In the situation of an ongoing crime, the government is not merely trying to solve one crime but also to prevent the next one. That should make a difference in court.

This week's acquittals should be a wake-up call to us all. It's time to refocus the criminal justice system on its central purposes—finding the truth about whether the defendant did in fact commit the crime, and allowing the public and the jury to hear all reliable evidence on both sides.

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